By Gretchen Schuldt

​State Supreme Court candidate Jill Karofsky won in most of the North Shore suburbs of Milwaukee County in Tuesday's primary election, while incumbent Daniel Kelly did better in the southern suburbs.

Karofsky, with 47,432 votes, was the top Milwaukee County finisher in the Feb. 18 primary. Incumbent Daniel Kelly finished second, with 44,088 votes, and Ed Fallone finished third, with 25,963 votes. Statewide,  Kelly finished first with 352,855 votes, Karofsky got 261,723, and Fallone received 89,181.

Karofsky and Kelly will compete in the April 7 general election. 

In Milwaukee County Karofsky won in Bayside, Brown Deer, Fox Point, Glendale, Milwaukee, St. Francis, Shorewood, and Whitefish Bay. Kelly won in Cudahy, Franklin, Greendale, Greenfield, Hales Corners, Oak Creek, River Hills, South Milwaukee, Wauwatosa, West Allis, and West Milwaukee.

Karofsky, a Dane County circuit judge, and Fallone, a Marquette University law professor, are considered more liberal than Kelly, who was appointed by former Gov. Scott Walker and is a member of the conservative Federalist Society.

Kelly won in some communities because Karofsky and Fallone split the more liberal vote. All other things being equal, if Fallone voters back Karofsky in the general election, she will pick up Cudahy, River Hills, South Milwaukee, Wauwatosa, and West Milwaukee, all of which went for Kelly in the primary. She also would pick up an additional 96 wards in the city of Milwaukee. 

Statewide, Karofsky would need to pick up all of Fallone's votes, plus 1,952 more to unseat Kelly.

Milwaukee County primary voter turnout was highest in Shorewood, at 34%, and lowest in West Milwaukee, at 18%. 

By Margo Kirchner​

The Wisconsin Supreme Court said in two recent opinions that criminal defendants must meet the same standards as lawyers when appealing their cases if their actual lawyers abandon them before the appeal is filed.
 
That means incarcerated people fighting on their own behalf must meet the same deadlines and follow the same rules as lawyers even without access to the same resources, such as law books, paper, and online information.
 
In each of the two cases, the defendant told counsel he wanted to appeal, but counsel failed to file a required notice of intent to pursue postconviction relief, resulting in the loss of appeal rights.
 
Such a failure constitutes ineffective assistance of counsel. But in each case the Court held the defendant responsible for errors when acting on his own to restart his appeal.
 
Justice Rebecca Grassl Bradley joined with Justices Ann Walsh Bradley and Rebecca Dallet in strong dissents in both cases.

​State v. Pope
 
In the first case, after four days of trial, a jury in Milwaukee County Circuit Court convicted Robert James Pope of first-degree intentional homicide as a party to the crime. In early July 1996, the court sentenced Pope to life imprisonment without parole.
 
Immediately after sentencing, Pope and his attorney, Michael Backes, signed a form indicating that Pope intended to pursue postconviction relief and that counsel would file a formal notice of the same within 20 days. Filing the formal notice sets in motion preparation of the trial transcript and appointment of appellate counsel. But Backes never filed the notice, and Pope’s direct appeal rights expired.
 
Pope and his mother tried repeatedly, without success, to reach Backes by phone to ask about the appeal.
 
About a year later, in August 1997, Pope contacted the State Public Defender’s Office to inquire about his appeal. The SPD told Pope there was no appeal, the office had no idea why the formal notice was never filed, and Pope could ask the court to extend the time for filing the notice.

By Margo Kirchner

​Overturning 14 years of case law, the Wisconsin Supreme Court recently expanded law enforcement’s right to use single-person showups rather than multi-person lineups when seeking identification of suspects.
 
The court ruled that a criminal defendant bears an initial burden of demonstrating that the procedure was impermissibly suggestive.
 
The court also criticized the use of social science in the law.
 
Social science, Chief Justice Patience Drake Roggensack wrote for the court, “has been used by courts as an excuse to justify disturbing decisions” such as Plessy v. Ferguson, which upheld racial segregation. At heart, though, she wrote, “[s]ocial science cannot change the original meaning of the Wisconsin Constitution.”
 
Show-ups have long been controversial. The U.S. Supreme Court, while declining to ban the practice outright, acknowledged in 1967 that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned."
 
Since 2005, the Wisconsin Supreme Court had placed an initial burden on the prosecution to establish that the showup was necessary. If the state failed to show necessity, the showup evidence was excluded.
 
The Supreme Court adopted the necessity requirement in State v. Dubose, finding that the state constitution provided more protection than the U.S. Constitution did when it came to identifications. Under the U.S. Constitution, evidence of showups can be barred from trial as a violation of due process when a defendant shows that the identification procedure was unnecessarily suggestive and the prosecution fails to establish that the identification was nevertheless reliable.
 
To determine reliability, a court considers factors such as the witness’ opportunity to view the suspect at the time of the crime, the witness’ degree of attention, accuracy of the witness’ description of the suspect, the level of certainty demonstrated by the witness at the time of identification, and the passage of time between the crime and the identification.

This month’s Roberson case returned Wisconsin to the federal test by overruling Dubose.
 
Roggensack, in her decision, opined that Dubose was “unsound in principle as it was based on misunderstanding the United States Supreme Court’s decisions in regard to out-of-court identifications and on topical social science.” 

By Gretchen Schuldt 

A defendant has the right to present a case at trial even if a judge thinks there is enough evidence to decide without it, the State Supreme Court ruled last week.

“We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial,” Justice Daniel Kelly wrote in a 4-2 decision.

Chief Justice Patience D. Roggensack and Justice Annette Kingsland Ziegler dissented, saying that Milwaukee County Circuit Judge Christopher Foley committed only a “harmless error” when he did not allow Mr. K a chance to present a case to contest the state's contention that he was an unfit parent.

Justice Rebecca Dallet did not participate in the case.

Mr. K testified under direct examination by the district attorney’s office and under cross examination by his own lawyer, Roggensack wrote. There is not a reasonable probability that the outcome of the case would have been different if Mr. K had been allowed to put on his own case, she said.

The court’s ruling reverses both Foley and District 1 Court of Appeals Judge Timothy G. Dugan, who upheld Foley’s decision.

By Margo Kirchner

​​An expunged operating-while-intoxicated (OWI) conviction can be counted as a prior offense when a defendant is prosecuted for a subsequent OWI, the Supreme Court of Wisconsin held last week.
 
Wisconsin law permits expunction of a criminal record after successful completion of a sentence if the defendant was under age 25 at the time of the offense, the maximum term of imprisonment for the offense is six years or less, and the judge ordered expunction at sentencing after finding that society would not be harmed by that result.
 
Upon successful completion of an expunged sentence, the clerk of court seals the case and destroys the court records. Expunction is intended to benefit a young offender, providing a second chance or a fresh start, according to the Supreme Court.
 
In Wisconsin, a first OWI offense is deemed a civil, not criminal, charge. Repeat offenses are criminal matters, and penalties increase with the number of offenses.
 
In 2011, Justin Braunschweig was convicted of a first OWI offense in Jackson County Circuit Court, and the judge ordered expunction.
 
Five years later, Braunschweig was arrested for driving while intoxicated with a blood-alcohol content of 0.16.  The state relied on Braunschweig’s expunged 2011 conviction as a prior offense, charging Braunschweig with criminal misdemeanor, rather than civil, OWI and prohibited-alcohol-content (PAC) offenses.
 
Braunschweig argued that his expunged conviction could not be counted and that he should not have been charged criminally. He lost the argument in the trial court and at the Wisconsin Court of Appeals.
 
Had Braunschweig’s 2011 conviction not been expunged, it unquestionably would count, said the Supreme Court. The question before the Court was whether an expunged conviction counts.
 
The Court held that it does. Justice Annette Kingsland Ziegler wrote for the unanimous Court.

By Margo Kirchner
​
After multiple hearings and studies, the Wisconsin Supreme Court has denied a long-pending petition seeking appointment of counsel for low-income people in civil cases that affect the litigants’ “basic human needs.”
 
Unlike defendants in criminal cases, litigants in civil cases generally do not have any right to counsel.
 
Back in September 2013, John Ebbott and Thomas Cannon, then the executive directors of Legal Action of Wisconsin and the Legal Aid Society of Milwaukee, respectively, asked the Court to fund a pilot project testing the appointment of counsel in civil cases and to adopt a new court rule requiring appointment of counsel in civil cases when “necessary to ensure a fundamentally fair hearing in a court proceeding that will affect the litigant’s basic human needs.”  Basic human needs included “sustenance, shelter, heat, medical care, safety, and child custody and placement,” Ebbott and Cannon said.
 
The Court had denied a similar rule petition previously, saying that “the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.” The Wisconsin Access to Justice Commission (WATJC) later developed a pilot project to test civil appointments, but the State Bar of Wisconsin declined to fund it.
 
The WATJC, a nonprofit organization created by the Wisconsin Supreme Court at the request of the State Bar of Wisconsin, aids the Court in expanding access to the civil justice system for unrepresented, low-income Wisconsin residents. Providing civil legal aid can assure fairness for those involved in the justice system, reduce court costs, and strengthen communities, according to the organization.
 
The 2013 petition sought funding of the pilot project by the Supreme Court.
 
The Court discussed the petition at an open administrative rules conference in December 2013 but held off decision at that time.
 
The WATJC, in an October 2014 letter from its then-president, retired Milwaukee Municipal Court Judge James Gramling, suggested that if the Court chose not to fund and implement the pilot project it could ask the Wisconsin Legislature to create a legislative study committee to examine “the costs, benefits, scope, and revenue options” of an appointed-counsel plan for low-income litigants in civil cases involving basic human needs.

By Margo Kirchner

​The Wisconsin Supreme Court last week approved felony charges against an adult for conduct allegedly committed when he was eight or nine years old – too young to be accused of juvenile delinquency.
 
In likely one of his last opinions before his term ends, Justice Michael J. Gableman wrote that a defendant’s age at the time he is charged, not his age at the time of the underlying conduct, determines how charges can be brought.
 
Justice Ann Walsh Bradley, in a concurring opinion, disagreed with Gableman’s reasoning. She said it was “absurd to conclude the legislature intended that criminal liability can attach for acts engaged in by children ages zero-ten. The majority’s conclusion to the contrary defies the purpose and structure of our statutes, as well as the rationale of prior case law.”
 
As noted by the Court, misconduct of a child under 10 years old generally is treated as a case of a juvenile in need of protection or services (JIPS), misconduct of a child aged 10 through 16 generally is addressed as a matter of juvenile delinquency, and misconduct of someone 17 or older is charged in adult court. Prior case law allowed for the charging of some JIPS-age conduct as juvenile delinquency, and statutes delineate the process for moving cases between juvenile court and adult court.
 
But until Friday the law did not clearly provide that conduct committed when a person was of JIPS age could be prosecuted years later in adult criminal court.

By Gretchen Schuldt

Thirty-six circuit court judges from 18 Wisconsin counties are together publicly supporting a proposal to increase pay for appointed defense lawyers. 

"As trial judges, we experience, on a daily basis, the impact that the underfunding of indigent criminal defense has on the quality and integrity of our criminal justice system," Milwaukee County Circuit Judge Glenn H. Yamahiro wrote to the State Supreme Court. Yamahiro was the main author of the letter and was joined by the author judges.

"These impacts often impede our ability to function effectively and efficiently. We have observed a decline in the quality of representation provided to indigent defendants. Many experienced lawyers have discontinued accepting public defender appointments out of economic necessity. As a result we face an increasing number of inexperienced or underqualified lawyers representing indigent defendants in serious criminal matters."

Yamahiro and the 35 other judges were commenting on a petition pending before the Supreme Court that seeks to raise from $40 an hour to $100 an hour the amount paid to lawyers appointed by State Public Defender's Office (SPD) to represent clients who cannot afford to hire a lawyer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest. The Supreme Court will hold a public hearing on the matter May 16.

"It is imperative that our Supreme Court exercise leadership to address the Constitutional Crisis...because the executive and legislative branches of government have failed to address this problem...over the past 40 years," he said.

By Gretchen Schuldt

​The number of lawyers in Wisconsin willing to defend indigent clients for $40 an hour dropped 16% in five years, the head of the State Public Defender's office told the Supreme Court.

"Considering the $40 rate and the cost of operating a law practice, it is unsurprising that there are fewer attorneys willing to accept SPD (State Public Defender) appointments," State Public Defender Kelli S. Thompson wrote to the justices.

There were 1,099 attorneys who accepted the cases in 2012 and 921 in 2017, a decline of 178, she said.

Thompson wrote to provide input on a petition pending before the court to raise from $40 an hour to $100 an hour the amount paid to lawyers appointed by SPD to represent clients who cannot afford to hire a lawyer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest. The Supreme Court will hold a public hearing on the matter May 16.

​​In Marathon County, it takes an average of 80 contacts and 17 days to appoint a private attorney. In Price County, it takes an average of 33 days to appoint a private lawyer; in Appleton, it takes 17 contacts to find a lawyer, she said. 

"In three difficult cases, it took 302, 261, and 260 contacts to find an attorney," she said.

The Ashland County office requires 39 contacts per case and an average of 24 days to appoint a lawyer, she said. The Ashland County office handles cases in Ashland, Bayfield, and Iron Counties.

"The lack of availability in rural areas is beginning to have an indirect effect in Milwaukee as more and more attorneys from urban areas are appointed to cases in rural counties," she said.

Her office has made 18 separate formal attempts to increase the $40 per hour rate since 1999 , Thompson said.

"SPD budget requests have not been included in the budget introduced by the Governor, and none of the stand-alone legislation has received a public hearing or vote by the Legislature or its standing committees," she said.

During 2015-17, SPD paid out $41.8 million in attorney compensation, based on a $40 rate. Increasing the rate to $100 per hour would cost an additional $62.6 million, she said.

During the last legislative session, she said, the SPD proposed a tiered system in which hourly pay would increase with the difficulty of the case. That would have cost about $20.2 million over a biennium when fully implemented, she said.

Below are excerpts from additional comments submitted to the Court. The deadline to submit comments was Tuesday.

As a judge, I have learned that the relative unavailability of even minimally "adequate" private attorneys who are willing to take SPD appointments results in substantial inefficiencies in the criminal justice system. The appointment of private attorneys for SPD cases is often delayed because the local SPD office has been forced to seek attorneys from an ever-widening geographic area. I have also learned that a downstate attorney's willingness to take appointments in the Northwoods is not necessarily commensurate with the attorney's skill level. Late last year I was compelled to grant a postconviction motion for withdrawal of a plea in a high-profile felony prosecution due, in part, to inadequacies in the SPD-appointed attorney's handling of the matter.

In my judgment, the upshot of all this is that, at the current rate of compensation paid to private attorneys appointed by the SPD, the number of properly qualified private attorneys willing to accept SPD appointments in my county is woefully deficient. – Oneida County Circuit Judge Michael H. Bloom

The abysmal SPD rate guarantees only three types of lawyers now take appointments on anything like a regular basis: inexperienced new grads; high-volume attorney juggling unmanageable caseloads in an effort to make ends meet; and competent, experienced saints (who are few and who are unfairly financially stressed). ...

At least in Milwaukee County, complex felony cases are routinely relayed through a series of appointments. Two, three, four, and five attorneys are often appointed to one case, through a series of the new-grad or volume-juggler attorneys until the case finally lands in the hands of one of the few competent, experienced attorneys who can spot and litigate issues, hearings, trials, and who can responsibly and ethically deal with the special challenges of representing limited or challenged (and often challenging) clients.

What a waste. Defendants are held in custody longer; more court hearings are required with more pay to attending judges, clerks, court reporters, deputies, prosecutors, jailers, and defense attorneys. It's absurd. – Kathleen M. Quinn, Milwaukee

By Gretchen Schuldt

​Six Milwaukee County Circuit Court judges and two court commissioners, all of whom work in Children's Court, are supporting a petition asking the State Supreme Court to increase the amount paid to lawyers representing criminal defendants who are too poor to afford to hire lawyers.

Few lawyers are willing to accept the $40-an-hour rate the State Public Defender's Office (SPD) pays to lawyers it appoints when the office has excessive caseloads or conflicts of interest, the eight court officials wrote in a joint letter. The petition seeks a $100-an-hour rate. Tuesday was the last day to submit comments. The Supreme Court will hold a public hearing May 16.

A seventh Milwaukee County circuit judge, Pedro A. Colon, wrote separately.

The joint letter said almost all parents subject to involuntary termination of parental rights actions are eligible for public defender representation, the joint letter said.

"The lack of attorneys able to accept the current hourly rate leads to lengthy delays as trials are stacked and then adjourned. This means that vulnerable children remain without permanent homes for increasing lengths of time," the eight wrote.

​In delinquency cases, they said, the paucity of willing lawyers leads to delays that "negatively impact both juveniles and the victims of their offenses," the officials wrote. "The quality of representation afforded to the juveniles can also vary greatly. These issues with both the quantity and quality of representation are a direct result of the low reimbursement rates."

"The seriousness of these issues has only increased over time," they said. "Unchecked by this court, they threaten to undermine our ability to provide due process to the litigants who appear before us."

The six judges who signed the letter are Lindsey Grady, Jane Carroll, M. Joseph Donald, Christopher Foley, Gwendolynn Connolly, and David Feiss. The two court commissioners are Julia Vosper and Katharine Kucharski. 

Colón, in his letter, noted that the rate has not increased in the 24 years he has been practicing law.

"Such a low rate has the effect of creating a system where the rights of accused are compromised. The collateral cost of this is unnecessary incarceration and post-conviction motions which ultimately cost the legal system legitimacy and the taxpayers more."

​Below are excerpts from additional comments, including those from two prosecutors,  submitted to the Court.

I want to point out that the current private bar rate for appellate attorneys of $40 an hour is wholly inadequate.… Those private bar attorneys who do take appointments from the State Public Defender are paid nothing until the conclusion of the appeal unless interim payments are requested.

Unlike cases in the trial court where a case may be concluded in three to six months, an appeal can take from one to two years to resolve. One key difference between appeals and trial court work is that transcripts must be prepared, and often criminal law appellate advocacy requires going back to the trial court before proceeding to a direct appeal. – Nicholas C. Zales, Milwaukee

Early in my career, I took many appointments.… While the experience was great for me, it wasn't always great for or fair to my clients. Their lives and liberty were at stake, and they had a lawyer training on the job. I recall a couple cases, were despite my best efforts, I overlook some pretty obvious legal issues. One in particular resulted in a conviction and eight-year prison sentence. A better and more experienced lawyer would have caught that mistake at the trial level. Thankfully, that client's post-conviction attorney did discover and correct that mistake. But my client spent a year in prison for this crime before the Court of Appeals vacated his conviction.

His case exemplifies the problems created by Wisconsin's current indigent defense system. One of our fellow Wisconsinites had to spend a year in prison for a crime he should never have been convicted of committing. He did so because he didn't have the effective assistance of counsel. That should be reason enough to prevent similar mistakes from happening in the future. But that year in prison also called cost the state over $30,000. So the cost of providing qualified and competent counsel won't just aid in preventing injustices like what happened to my client. It likely will save the state money in the long run. – Joshua D. Uller, Milwaukee

As I am sure you are aware, Wisconsin's current rate of $40 per hour is the lowest in the country. This makes it difficult for the State Public Defender to find attorneys willing to take these cases. As a result, some defendants are forced to spend excessive periods of time in jail prior to disposition of their cases, through no fault of their own. These individuals are entitled to effective representation that does not raise the possibility of a conflict of interest – especially a motivation to settle quickly and/or without adequate investigation, regardless of the client's wishes – that may arise from the fact that their attorney's costs are not covered by the current rate. – Molly Collins, deputy director, ACLU of Wisconsin, Milwaukee

​
The rate for appointed counsel must be raised in order to protect the integrity of the criminal court process and more importantly to provide the Constitutional right of an attorney to those who are indigent. Unfortunately, in our northern community, as is rampant throughout the northern region of Wisconsin, too many indigent defendants have cases delayed for weeks, which turn into months until an attorney can be appointed. A good share of these indigent defendants remain in custody while the process of locating an attorney who accepts the current nominal/de minimis fee. This also impacts the rights of victims to have the cases resolved in a timely manner, and lends further frustration in cases involving a child victim. – Ruth D. Kressel, assistant district attorney, Ashland County

I typically accept appellate cases from Waukesha, Milwaukee, Racine, Walworth and Kenosha counties. During the past month, I have been offered cases from Fond du Lac, Sheboygan, and Outagamie counties because there are not enough attorneys to take those cases. – Sara Roemaat, Pewaukee

The issue before the court is one of equal access to justice, regardless of a person's ability to pay for that justice. The question is, will we afford the poorest people in our society who were charged with crimes a fighting chance to obtain the same justice as a wealthy person who can afford to hire a private attorney?

The needs of poor criminal defendants are not being met.… It is an embarrassment to me to be part of a system that has such little regard for the legal needs of poor people charged with crimes. If we leave this issue to the Legislature to correct... I do not believe anything will change anytime soon. If the Legislature hasn't done anything in 34 years, why would we expect anything different now? – Steven M. Lucareli, Eagle River

If the rate continues to remain unchanged, fewer and fewer lawyers will take appointed cases. The consequences to the criminal justice system will be catastrophic – people who are presumed innocent will remain in jail without representation for months, judicial calendars will become nightmarish, and victims will not have any resolution.…

On the ground level the system is imploding...c – Anthony D. Cotton, President, Wisconsin Association of criminal Defense Lawyers, Waukesha

It's very sad that many competent and experienced criminal defense attorneys don't take SPD appointments because of the abysmally low rate of pay. It's very sad that I take only a few SPD cases, and that fact makes me feel guilty. It's very sad that a grandmother hired me a little over a year ago true represent her grandson in an armed robbery case in Marathon County after took the SPD 17 days to appoint an attorney from Milwaukee to handle the case, and the attorney had not yet talked to the client for 20 days after the appointment. It's very sad that some of the SPD cases I have taken in the last year were after the prosecutor asked me to take the cases because they were concerned that the defendants had not been well represented by the SPD private bar appointed attorneys they had just discharged. – Richard M. Lawson, Wausau

The courts not only get bogged down while it takes weeks to find an attorney to appoint on some of these cases, but they continue to be mired down as continuances and adjournments are sought throughout the case because an inadequately prepared lawyer needs to handle way too many clients to make the economics work. I will admit that I sometimes shudder when I think back on how poorly I was prepared back in my days of SPD appointments. It is not for a want of caring or compassion on the parts of the attorneys representing these clients, it is for a want of hours in a day. Oftentimes criminal defendants sit this entire time in jails that are pressed way beyond capacity. I can honestly say that nearly every time I am in front of either a judge or court Commissioner for an initial appearance, I hear numerous requests from people both in and out of the jail for an adjournment because they talked to the SPD office but don't have an attorney appointed yet. The system as a whole is bursting at the seams right now with everything but adequate funding. – Jeffrey Kippa, Appleton